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I just read “Policing Protests in the United States: 1960-1995,” a fascinating article by Clark McPhail, David Scheingruber, and John McCarthy on the development of policing tactics in the US. Highly recommended for anyone interested in the history of social movements in the US.

The article reference to something called public forum doctrine or public forum law. As McPhail describes it, public forum doctrine divides the physical world into different categories, categories which have implications for the different protest actions which may (or may not) take place there. McPhail identifies four broad categories, which he articulates as “the ‘traditional public forum,’ the ‘limited’ or ‘designated’ public forum,’ the ‘nonpublic forum,’ and private property.” The most permissive of these is the traditional public forum, streets, parks, sidewalks, town commons, and other areas traditionally recognized as being held in common for the public good. Limitations of speech and protest actions in these spaces, can, according to McPhail, be subject to only limited “time, place, and manner restrictions,” which cannot be based on the message of the protesters themselves. The next two categories on the continuum, the limited/designated public forum and the nonpublic forum which “includes governmental property that is not a public for ‘by tradition or designation’–such as a post office or jail,” McPhail identifies as being subject to the same criteria as the traditional public forum. That is, speech acts at these locations cannot be restricted based on the content of the speech, and such restrictions must be “reasonable.” The only property category that is not subject to such limits on restrictions is private property. The owners of private property are relatively free in the restrictions they can place on the speech of others when it takes place on their property.

Personal anecdote: Way back when, I worked as a user wrangler for a social networking site which shall go unnamed. Part of my job involved taking down content that violated our Terms of Service: content that was pornographic or offensive or harassed another user, etc. About 80% of the time, upon deleting the offending material, we would get an email from the poster, accusing us of violated their First Amendment rights by deleted their content. We hadn’t, because as a private company, we had the right to determine what speech content we wanted hosted on our privately owned servers. The First Amendment only extends to the actions of the government with regards to he abridgment of free speech. However much within our rights as the website to remove user content, essentially, at will, this crystallizes for me an issue that is coming more and more to the forefront of political action on the internet.

I would argue that there are no public fora on the internet. This is devastating when it comes to the development and use of digital protest tactics. While protest taking place in the various public fora ‘in real life’ have a foundation of history and legal doctrine to support their legitimacy as valid and protected political speech, actions that take place in the online sphere can only ever infringe on privately held property. The architecture of the network does not, as of yet, support spaces held in common. Moreover, I would argue that any attempt to establish dedicated public fora online for the legitimization of digital protest would do little more than create “free speech zones” online, distancing protest speech from the general online discourse.

A great thing about those traditional public fora mentioned above is that, IRL, public streets and roads go, if not everywhere, a hell of a lot of places. In most instances, street protests can take place in actual and rhetorical proximity to the target, be it corporate or governmental, of their speech while remaining in a physical location that protects their rights to free speech. The private-ownership model of the internet co-opts that possibility in the online space. Despite what Neal Stephenson foreshadowed, here is no “street” on the modern internet.

Right now, digital protest tactics, digital direct action in particular, are attacked as illegitimate because they inevitably tread on the private property of someone. This conflict does have a physical world parallel. The initial Occupy Wall Street camp was established at Zucotti Park, a “privately-held public space” which is ostensibly available for public use but still subject to the potential restrictions of private property. The free speech obligations/protections provided by such spaces are legally murky. As more of our public spaces are privatized, and as the private spaces of the internet become an important nexus of speech, the guarantees that protect our ability to engage in public protest become less certain. If digital protest tactics are going to be held as legitimate, and I believe they should be, then this is a fundamental issue that needs to be addressed.

A major question that continued to fall out of the discussions being had, on stage and amongst the crowd later, dealt with the problem of apathy, or at least the appearance of apathy, among the population at large in response to news coverage. After the event last night, I had a chance to think more about this question. This is my attempt to talk/write through my thoughts and reactions to the issue.

During his talk, Olojede told an anecdote about what his newspaper experienced when they published an extensive expose about extensive and blatant corruption in the petroleum industry in Nigeria. Significant attempts were made “by everyone I had ever known” to keep Olojede from publishing what was sure to be an explosive story on one of Nigeria’s chief industries. He was offered $20M to spike the story. The story was published anyway. Nothing happened. No reaction, no outcry, no public outrage. In what seems to Olojede to be a “slap in the face,” key officials from the implicated sections of government were reappointed by the Nigerian Senate, “with no questions asked.”

“So,” concluded Olojede. “”What happens when you arm the public with all this infomation, and they do nothing?”

Maybe the problem isn’t apathy. It may not be that Olojede’s audience did not care. Rather, they did not manifest their feelings about the issue at had in a way that Olojede could see or recognize as “caring.” He did not receive the outcome he thought was appropriate, which would have been some sort of public political outcry and subsequent reform. This feeling of rhetorical abandonment, like you and your colleagues are shouting with all your might down a well, is incredibly frustrating and demoralizing, and I sympathize with Olojede’s frustrations.

However, just because his audience didn’t react in a way Olojede wanted doesn’t mean they didn’t care. I’d like to posit that what occurred in this case, and what occurs in many similar cases what not apathy, but confusion: confusion of the next step to take. Reasonable, reactive anger without a constructive outlet can quickly dissipate or malignantly fester, but very rarely spontaneously manifests into useful action. You can feel genuinely outraged by an event, but sitting by yourself at the breakfast table with your newspaper, it’s easy to feel your outrage is isolated, and there is no sure next step to take. However, if you are angry, and you look out the window and your neighbors are marching in the street, suddenly your personal path of action is clearer. An active path needs to be available when the public is angry, perhaps laid out in conjunction with news coverage or even by journalists themselves. Without the clear option to act, and a clear path to follow, anger and confusion can lead to hopelessness, and, indeed, a sort of defensive apathy. I think there are palpable feelings of shame associated with inaction in the face of a wrong, and it may be an action of self-defense to hunker down in the motion of everyday life if you truly feel you can do nothing about it.

An example to consider: the popular participation in Anonymous’s Operation Payback last December. The DDOS tool LOIC had been around for a while, and had been used in Anon actions before, but news versions of the tool, included versions that could run on Android phones and jail-broken iPhones and simplified versions with attractive and easy-to-use GUIs expanded the potential user-base considerably. Add to that the use of public Twitter accounts (rather than IRC, which can be intimidating for neophytes to access) to advertise target IP addresses and coordinate actions, and constant news coverage that either linked directly to or provided search terms for the active Twitter accounts and newsfeeds, and you have a swarm of factors that enable a population that was angry at current events to quickly, easily, and with little perceived risk to themselves participate in significant protests actions online, though they may never have been an active member of such a group before. They reached for the tools at hand. Those tools may not have been perfect (the most commonly used versions of LOIC were later found to have security flaws that exposed their users IP addresses during an attack), and DDOS as a mode of political protest is controversial at best, but they represented the most visible path, the tool closest and most clearly at hand.

Another example to consider, from the other side of the issue: the (lack of) mobilization among the hordes of American unemployed. The unemployed population in previous generations had been ripe for organizing and social action. Why not now? Catherine Rampell published an excellent analysis of the issue in the New York Times, in an article called “Somehow, the Unemployed Become Invisible.” She draws attention to problems of the unemployed experiencing feelings of powerlessness, social shame and depression that make them less likely to take political action. Another issue she brings up is suburbanization of the unemployed population:

“Back in the 1960s or even the 1980s, the unemployed organized around welfare or unemployment offices. It was a fertile environment: people were anxious and tired and waiting for hours in line…The Mon Valley Unemployed Committee, which is based in Pittsburgh, helped organize workers in 26 cities across five states, simply by hanging around outside unemployment offices and harnessing the frustration. Today, though, many unemployment offices have closed. Jobless benefits are often handled by phone or online rather than in person. An unemployment call center near Mr. Oursler, for instance, now sits behind two sets of locked doors and frosted windows.”

The scattering of the target population means that it loses a sense of community. The feelings felt by individuals are allowed to dissipate, rather than reinforce each other in a group and become organized. Even those online resources aimed at the unemployed are more focused on resume composition or other similar services than encouraging, harnessing and directed any sense of outrage at national policy.

Journalists, distributing information to large number of people through whatever media is at their disposal, are in an ideal position to tap into the outrage and desire for change that their work ideally seeks to inspire. If it is truly their intention to cause significant social and political change with their work, then it seems the focus on dispassionate, uninvolved journalism that only informs and refrains from directing the feelings it inspires represents an ocean of missed opportunities. At worst, it actively contributes to a sense of hopelessness and, yes, apathy, by inspiring emotions but offering no way for those emotions to grow into action.

I’m just at the beginning of my analysis of these issues. If you’ve got an opinion or reaction, I’d love to discuss it!